Examining First Amendment Rights on Campus

In a hearing on Wednesday, September 26th, the U.S. House Committee on Education and the Workforce addressed the topic of free speech on college campuses. To begin, Chairwoman Virginia Foxx (R-NC) stated that institutions of higher education “curbing speech” via anti-harassment policies threaten to undermine the cultivation of students’ critical thinking skills crucial for “professional development.”

The hearing occurred in light of debates on college campuses concerning students’ First Amendment rights. Central to these debates are cases of administrations uninviting speakers per students’ requests and controversies over student organizations and demonstrations policies. The cases have spurred a partisan divide. The “dangers of politicizing this issue,” witness Suzanne Nossel of PEN America warned, is that “we run a real risk of raising a generation that’s alienated from its core principle.”

The partisanship is seeded in a fundamental disagreement over what kinds of speech the First Amendment protects and what power public and private institutions have to determine what is considered to be hateful speech. Witness Ken Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University and president of the First Amendment Center at the Newseum, took issue with legislative regulation of free speech. He made a “main street” argument—campuses should eliminate restrictive free speech zones because “all of America is a free speech zone.”

Paulson’s view on free speech fails to account for concerns from students of marginalized backgrounds who remember a past of unequal civic protections. And inequalities in our education system persist today. A 2016 Government Accountability Office report found increased segregation in K-12 public schools. In response to the report, Congress introduced the Equity and Inclusion Enforcement Act (EIEA) in 2017 to amend Title VI of the Civil Rights Act of 1964. The EIEA aimed to empower communities and parents to address racial segregation in public schools. Title VI of the Civil Rights Act addresses anti-harassment policies to protect historically marginalized individuals.

Campus anti-harassment policies ignite the partisan fire. Nossel herself illustrated the divide in the room, appealing to Paulson and some committee members when she remarked that “the land of the free has become the land of the easily offended.” Nossel however took a multilateral view counter to Paulson’s free-for-all, calling on administrations to make “thoughtful and meaningful” decisions about guest speaker invitations. The “proactive response,” Nossel suggested, fosters a culture of mutual understanding that results in shared values between students, speakers and administration officials of unequivocal free speech.

Zachary Wood complicated the partisan divide in his testimony before the committee. Author of “Uncensored,” Wood spoke about his experience as a black, progressively liberal student at Williams College. At Williams, he led “Uncomfortable Learning,” a student organization that invited controversial speakers, including ones his peers called “white supremacists,” with the aim of fostering open dialogue and debate. Wood received criticisms from peers, including hate mail that accused him of being a “traitor to the [black] race.”

Speaking about the partisan divide, Representative Suzanne Bonamici (D-OR) said that “both sides” are guilty of suppressing free speech. She reminded her fellow committee members that recent studies show less than 50 percent of students believe campus policies are restrictive. Even then, Representative Bonamici suggested, people across party lines should be concerned with the 216 cases of white supremacist activity on campuses between September 2016 and January 2018.

Representative Bonamici and Wood raised the distinction between protected speech and action, a disagreement that transcends party affiliation. Representative Bonamici suggested that too much emphasis on “both sides” entails a false equivalence. White supremacist mentalities, as expressed through policies and organized activity, have historically discriminated against and destroyed the lives of racial and ethnic minorities in the U.S. Yet Wood, a “principled protector of free speech,” as some committee members called him, maintained that even “white supremacists” have the right to speak on college campuses.

Nossel weighed in on the debate between speech and action, saying that a black female student once told her that the “First Amendment wasn’t written for [her].” Nonpartisanship does not mean treating the historically oppressed the same as their oppressors. It should entail reexamining the meaning behind our nation’s core ideals—a “proactive” approach, as Nossel might suggest, to cultivating a culture of common values among our country’s representatives.

Politicizing free speech creates grounds for conflating racial, ethnic, and religious biases with political beliefs. Representative Mark Takano (D-CA) raised this concern, asking witness Joe Cohn from the Foundation for Individual Rights in Education (FIRE) his views on the Department of Education’s (DoE) new definition of Anti-Semitism. Representative Takano referenced Assistant Secretary of the Office of Civil Rights in the Department of Education Kenneth Marcus’ recent claim that a pro-Palestinian group at Rutgers University expressed Anti-Semitic views by imposing a fee for students to attend their event. Cohn called the DoE’s decision “deeply unconstitutional,” and demanded that Congress “make clear the line between protected speech and harassment.” Not all Palestinian Human Rights Advocates are Arab or Muslim and not all supporters of Israel and Zionism are Jewish.

Cohn alluded to the fundamental problem with the free speech debate. In purporting principled interpretations of the First Amendment, some veil partisan motivations with nonpartisan rhetoric. At AAI, we are concerned with policies that perpetuate anti-Arab sentiment and restrict the civil liberties of Arab Americans. These policies promote a mentality that legitimizes restrictions on people’s freedoms on university and college campuses, on ‘Main Street,’ and on foreign soil. We hope that campus free speech policies fully account for the importance of students’ and faculty’s First Amendment rights.

Claudia Sandell-Gándara is a 2018 Fall Intern at the Arab American Institute.